Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing
Trigilio, Joseph, Casadio, Tracy, American Criminal Law Review
For over a century, the Supreme Court has crafted a specific analysis for determining whether a particular sentence is proportionate to the crime under society's norms and to the culpability of the offender. Such an analysis informs whether a sentence is "cruel or unusual punishment" and thus unconstitutional. In the capital context, the Court has examined the proportionality of a death sentence for the crimes of murder and rape. It has also examined the penalty in light of specific categories of defendants, including non-triggermen accomplices, the mentally retarded, and juvenile offenders.
Over twenty years ago, the Court decided a trilogy of cases that appeared to limit the capacity of proportionality principles to regulate death penalty eligibility. That trilogy of cases began with Tison v. Arizona, which found that a death sentence was proportionate for an offender who neither killed nor intended to kill, but who was a major participant in a felony and acted with a reckless disregard for life. Around the same time, the Court found that a defendant's status as a juvenile offender or a mentally retarded person--characteristics impacting culpability--did not render the death penalty disproportionate.
In the beginning of the twenty-first century, however, the Court altered its analysis and ruled that the execution of the mentally retarded and juvenile offenders is categorically disproportionate to our society's evolving norms and to the offender's level of culpability. Yet, having reversed two of its prior decisions, the Court has not had occasion to review the holding of Tison. This Article prepares the ground for that challenge. It argues that, under the proportionality analysis articulated in Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana, the contemporary "standards of decency" require a further narrowing of death penalty eligibility for those who do not kill nor intend to kill. This conclusion is supported by a survey of the death penalty schemes in all fifty states as they apply to felony-murder non-triggermen, the extraordinarily low number of defendants in this category who are either on death row or who have been executed, international law, and a reasoned analysis of culpability principles as applied to felony-murder accomplices.
TABLE OF CONTENTS INTRODUCTION I. THE SUPREME COURT'S PRE-TISON PROPORTIONALITY CASES A. Gregg v. Georgia: The Court's First Application of the Two-Part Proportionality Analysis in a Capital Case B. Coker v. Georgia: A Death Penalty for Adult Rape Fails the Two-Part Proportionality Analysis C. Enmund v. Florida: The Court Addresses the Proportionality of Executing a Felony-Murder Accomplice II. THE TISON TRILOGY: ABRIDGING THE ESTABLISHED PROPORTIONALITY ANALYSIS A. Tison's Altered Proportionality Analysis B. Stanford v. Kentucky: Court Approves Executing Juvenile Offenders C. Penry v. Lynaugh: Court Approves Executing the Mentally Retarded III. RESURRECTING THE CATEGORICAL APPROACH TO PROPORTIONALITY A. Atkins v. Virginia 1. Objective Indicia 2. Subjective Analysis B. Roper v. Simmons 1. Objective Indicia 2. Subjective Analysis C. Kennedy v. Louisiana 1. Objective Indicia 2. Subjective Analysis D. Distilling the Revitalized Proportionality Analysis 1. The Components of the Objective Indicia Analysis 2. Considerations Governing the Subjective Analysis IV. REVISITING TISON: EXAMINING THE PROPORTIONALITY OF DEATH SENTENCES OF FELONY-MURDER ACCOMPLICES UNDER THE RESURRECTED PROPORTIONALITY ANALYSIS A. Objective Indicia B. Subjective Analysis 1. A Categorical Approach to Felony-Murder Accomplices 2. The Intent Requirement of Retribution and Deterrence CONCLUSION APPENDIX
On August 14, 1996, near San Antonio, Texas, Kenneth Foster joined his friends Mauriceo Brown, DeWayne Dillard, and Julius Steen in a night of drinking and smoking marijuana. (1) In the course of the night, they committed as many as two armed robberies. (2) Later, with Foster at the wheel, they began tailing two cars driven by Michael LaHood and Mary Patrick. (3) Brown got out of the car, told Patrick to go inside, began fighting with LaHood, and eventually drew a gun and shot him. (4) Foster anxiously tried to drive away, but he was talked into staying by Dillard. (5) The group was soon arrested. (6) Brown, the man who shot LaHood, eventually admitted to the murder and was tried and sentenced to death. (7) Dillard and Steen, on the other hand, were offered plea agreements. (8) Foster was not so fortunate. He was tried jointly with Brown and sentenced to death even though the prosecution conceded that he neither intended to kill Michael LaHood nor fired a single shot. (9)
As Foster's execution date approached, outrage in the community--both locally and internationally--grew intense. (10) Many wondered how a man who had no intention of taking a life and who in fact did not take a life, could have his life taken by the State. (11) While many blamed a perceived appetite for executions in Texas, Foster's death sentence for a murder he did not commit or intend to commit was condoned by the United States Supreme Court almost two decades earlier in Tison v. Arizona. (12) In Tison, the Supreme Court held that an accomplice to a felony who neither kills nor intends to kill may be constitutionally executed for a killing committed by one of his co-felons so long as the accomplice is a major participant in the underlying felony and acts with a reckless disregard for human life. (13)
Despite the constitutionality of Foster's execution, the Governor of Texas commuted Foster's sentence to life in prison hours before the time appointed for his execution. (14) The Governor's political decision spared Foster from being one of the very few individuals executed in the United States after having been convicted of capital murder despite neither killing nor intending to kill anyone.
The Texas Governor's decision to commute Foster's sentence is but one indication that the "evolving standards of decency" that place constitutional limitations on the use of the death penalty under the Eighth Amendment no longer permit the State to execute felony-murder accomplices who neither kill nor intend to kill. (15) While the change in the law affecting this standard requires overruling Tison, there are many reasons to believe the time is ripe for doing so.
Tison leads a trilogy of cases, including Stanford v. Kentucky (16) and Penry v. Lynaugh, (17) that represent a sharp break from a tradition of careful scrutiny on proportionality that considers both objective and subjective criteria in determining whether a certain category of defendants is constitutionally eligible for a death sentence. In the last decade, however, the Court has overturned both Stanford and Penry, leaving Tison as the last case standing in this aberrational jurisprudential line. The Court's recent proportionality cases, Atkins v. Virginia, (18) Roper v. Simmons, (19) and Kennedy v. Louisiana, (20) rejuvenate the Court's earlier proportionality precedents and render Tison questionable authority.
Since Tison, significant changes in state capital punishment authorization schemes have limited the availability of the death penalty for felony-murder accomplices who neither kill nor intend to kill. Capital punishment for this category of defendants is no longer anywhere close to approaching the majority rule. In addition, the Court's contemporary analysis resurrects culpability as the touchstone for determining whether the use of the death penalty is justified by the penological goals of retribution and deterrence. In consideration of the changes at the state level, representing both objective indicia of evolving standards and a renewed focus on culpability, Tison's rule that felony-murder accomplices are death eligible under the Eighth Amendment regardless of their intent to kill should be abrogated. (21) This Article explores the evolution of the Eighth Amendment proportionality analysis adopted by the Court and how that evolution impacts the constitutionality of executing felony-murder accomplices. (22) Part I provides the historical background of the Court's Eighth Amendment analysis before Tison v. Arizona. Part II examines the departure that occurred with the Tison trilogy. Part HI looks at the Court's return to the pre-Tison approach to proportionality and implicit rejection of Tison. Finally, Part IV revisits the Tison rule, surveying both the authorization and the application of the death penalty to felony-murder accomplices in all fifty states and the federal government, and discusses how its use is no longer justified by penological goals absent an intent-to-kill requirement. To strengthen our claim of a significant shift in the national consensus, an appendix at the end of this Article provides a brief analysis of the capital sentencing schemes of all thirty-five states that permit the death penalty as it relates to the authorization of capital punishment for felony-murder accomplices. (23)
I. THE SUPREME COURT'S PRE-TISON PROPORTIONALITY CASES
The Eighth Amendment forbids the state from imposing punishments that are "cruel and unusual." (24) This mandate has been interpreted by the Court to ensure that a defendant's punishment is proportionate to the crime for which he is convicted and that the standards by which a court determines the proportionality of a punishment are constantly evolving along with our society. The Court first discussed the evolving nature of the Eighth Amendment almost a century ago in Weems v. United States, identifying an American belief that "punishment for crime should be graduated and proportioned to offense." (25) In doing so, the Court acknowledged that the framers of the Eighth Amendment deliberately left "cruel and unusual punishment" without a static definition. (26) Instead, the Amendment was said to be enacted from an "experience of evils," that should not "be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes." (27)
Nearly forty years after Weems, the Court in Trop v. Dulles (28) revisited the proportionality analysis and cemented the idea that punishments must be determined according to the "evolving standards of decency that mark the progress of a maturing society." (29) The Court realized that determining "evolving standards of decency" cannot be achieved by simply looking at public notions of decency alone. (30) Instead, a penalty must also be consistent with the "dignity of man[,]" which is the "basic concept underlying the Eighth Amendment...." (31) Trop's acknowledgment that the Court must examine both society's standards of decency and inherent notions of human dignity set up the two-part framework for the Court's proportionality analysis that survives to this day.
A. Gregg v. Georgia: The Court's First Application of the Two-Part Proportionality Analysis in a Capital Case
The Court first applied the two-part proportionality analysis to a death sentence in Gregg v. Georgia. (32) In Gregg, the Supreme Court reexamined Georgia's death penalty scheme, which had been amended after Georgia's original scheme was found unconstitutional four years earlier in Furman v. Georgia. (33) In assessing the proportionality of a death penalty for the crime of murder, the Gregg plurality looked first to objective evidence of society's evolving standards of decency. (34) The plurality found legislative enactments to be the "most marked indication of society's endorsement of the death penalty" given that thirty-five states had enacted new death penalty statues since Furman. (35) The plurality also found "the jury" to be a "significant and reliable objective index of contemporary values...." (36) It noted that more than 460 people had been sentenced to death since Furman. (37)
The plurality then looked to see if the death penalty comported with inherent notions of dignity by examining whether it served "two principal social purposes: retribution and deterrence of capital crimes by prospective offenders." (38) To this question, the plurality concluded "that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe." (39) Accordingly, the Court held that the "death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it." (40)
B. Coker v. Georgia: A Death Penalty for Adult Rape Fails the Two-Part Proportionality Analysis
In Coker v. Georgia, (41) the Court again revisited the proportionality of a death sentence. In Coker, a plurality of the Court found the death penalty unconstitutional as applied to defendants convicted of raping an adult woman. (42) Justice White wrote the opinion for the plurality, and began by stating that while the death penalty is not per se "barbaric," it may be disproportionate given a particular crime or defendant. (43)
The Court applied the Trop framework for analyzing the proportionality of a death sentence. First, the Court examined "objective evidence of the country's present judgement concerning the acceptability of death as a penalty" for a particular crime--in Coker's case, rape of an adult woman. (44) For this analysis, the Court looked primarily to legislative and jury actions concerning death sentences for the crime of rape. Initially, the Court noted that at "no time in the last 50 years have a majority of States authorized death as a punishment for rape," and no state that previously excluded rape as a capital offense subsequently made it so. (45) Moreover, Georgia was the only jurisdiction authorizing a death sentence "when the rape victim is an adult woman, and only two other jurisdictions provide[d] capital punishment when the victim is a child." (46)
The Court also looked to juries' sentencing decisions "made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried." (47) The Court concluded that juries formed a consensus against giving a death sentence for rape where "in the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence" for rape. (48) Finally, the Coker Court looked to international opinion to support its conclusion. "It is ... not irrelevant here," the Court stated, "that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue." (49)
The Court then subjectively determined the excessiveness of the penalty in light of inherent notions of human dignity. (50) In judging whether a death sentence is "excessive," the Coker Court looked to see if death "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." (51) To answer these questions, the Court focused on the question of culpability. (52) In examining defendant Coker's culpability, the Court looked to the culpability of rapists as a category of defendants, rather than at Coker's culpability given his particular facts and circumstances. (53) The plurality acknowledged the high level of culpability of a rapist and the depravity of the crime of rape, (54) yet found "it does not compare with murder." (55) Finally, the Court concluded that, since it is not comparable to murder, "the death penalty, which 'is unique in its severity and irrevocability,' is an excessive penalty for the rapist who, as such, does not take a human life." (56)
C. Enmund v. Florida: The Court Addresses the Proportionality of Executing a Felony-Murder Accomplice
Five years after Coker, the Court applied the two-part proportionality analysis to executing a felony-murder accomplice who was a minor participant in the underlying murder in Enmund v. Florida. (57) Enmund involved a classic felony murder where a get-away driver who was not present during the shooting was convicted and sentenced to death for the murder committed by his cohort. (58) Enmund drove two accomplices to an elderly couple's house where he waited in the car. (59) While he was waiting, his accomplices robbed and eventually shot the couple inside. (60) Enmund drove the killers to safety. (61)
A jury found defendant Enmund guilty of two counts of first-degree murder under a felony-murder theory. (62) He was sentenced to death based on the aggravating circumstance that "the capital felony was committed while Enmund was engaged in or was an accomplice in the commission of an armed robbery ...." (63) Justice White, again writing for the Court, found that a death sentence for "accomplice liability in felony murders" is unconstitutional because for a class of defendants who "did not kill, attempt to kill, and ... did not intend to kill, the death penalty is disproportionate ...." (64)
Just as the pluralities did in Gregg and Coker, the Enmund Court looked to objective measures--the actions of juries and legislatures--as well as to its subjective judgment to determine the proportionality of executing a non-triggerman. (65) First, the Court found that "only a small minority of jurisdictions--eight--allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed." (66) The Court then added that in nine states a defendant "could be executed for an unintended felony murder if sufficient aggravating circumstances are present ...." (67) The Court looked to these seventeen states in light of all American jurisdictions, including those that did not authorize the death penalty under any circumstances, to find that "only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die." (68)
The Court also again looked to jury sentencing and the actual number of felony-murder accomplices executed. With respect to jury sentencing, the Court found only three defendants were sentenced to die absent a finding that they hired or solicited someone else to kill the victim or participated in a scheme designed to kill the victim. (69) Moreover, Enmund was the only defendant who had been sentenced to death with "no finding of an intent to kill and [where] the defendant was not the triggerman." (70) Finally, the Court concluded that no "person convicted of felony murder over the past quarter century who did not kill or attempt to kill, and did not intend the death of the victim" has been executed, (71) while "only three persons in that category are presently sentenced to die." (72)
The Court looked to international law as an "additional consideration" in objectively determining our nation's evolving standards of decency. (73) The Court noted that "the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe." (74)
Subjectively, the Court examined the blameworthiness of Enmund to determine if his culpability was proportionate to his death sentence. Just as it did in Coker, rather than look at Enmund individually, the Court placed him in a category of defendants (this time as a felony-murder accomplice lacking an intent to kill) to assess his culpability. The Court found it "fundamental that 'causing harm intentionally must be punished more severely than causing the same harm unintentionally.'" (75) Enmund and any other defendant who neither kills nor intends to kill are "plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims.]" (76) This, the Court ruled, was unconstitutionally disproportionate. (77) Moreover, the Court expressly examined the two penological purposes behind the death penalty: retribution and deterrence. First, it found that if an offender did not intend to take a life, it is unlikely that the punishment of death imposed for his accomplices' actions will deter the offender from participating in the underlying felony. (78) As for retribution, the Court found that executing Enmund for a murder he had no intention of committing "does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts." (79)
Through this reasoning, the Enmund Court categorically excluded certain defendants from death-eligibility, regardless of whether an individual non-triggerman could be more culpable than one who murders with premeditation. (80) Implicitly, the Court found that allowing juries to choose which non-killer is the worst of the worst carried too great a risk that an excessive and disproportionate death sentence may be inflicted. (81) Instead, as a category, felony-murder accomplices who were minor participants lacking an intent to kill could not be subject to the death penalty. Five years after Enmund, however, the Court departed from the categorical proportionality framework it had followed for over thirty years.
II. THE TISON TRILOGY: ABRIDGING THE ESTABLISHED PROPORTIONALITY ANALYSIS
Both Enmund and Coker broadly prohibit the death penalty for certain classes of defendants: rapists of adult women (Coker) and felony-murder accomplices who lack an intent to kill (Enmund). In both decisions (as well as in Gregg), the Court looked not just to statutory enactments, but also to international law and jury sentences as compelling objective evidence of society's evolving standards. In both decisions, the Court asked whether, categorically, a rapist or accomplice could be the worst of the worst, and by doing so, took that discretion away from a jury. Not many years later, however, the Court in Tison v. Arizona (82) abridged and altered its approach to proportionality, limiting its objective analysis and adopting a hyper-individualized assessment of proportionality. (83)
Tison examined the proportionality of executing a non-triggerman who harbored no intent to kill. (84) In Tison, two brothers were sentenced to die for their role in aiding their father's escape from prison and assisting in a subsequent robbery. (85) The Tison brothers entered an Arizona prison carrying an ice chest full of guns. (86) They dispersed the guns, locked the guards away, and fled the prison with their father and another inmate. (87) While escaping from their prison-break, the Tison family car blew a tire. (88) The group devised a scheme to flag down a passing motorist and steal a car. (89) After other motorists passed the group of men, the Lyon family stopped to assist the Tisons and were robbed. (90) The father then shot out the radiator of the Lyons' car and ordered the Lyon family to stand in front of the headlights. (91) After one of the victims pleaded for his life, the Tisons' father responded that he was "thinking about it." (92) He then told his sons to fetch water for the victims while the father watched over the Lyon family with a loaded shotgun. (93) While the brothers were getting water, the father murdered the family. (94) It is accepted that the two sons did not intend for the family to die. (95) Eventually, one brother was killed by police; the father escaped in the …
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Publication information: Article title: Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing. Contributors: Trigilio, Joseph - Author, Casadio, Tracy - Author. Journal title: American Criminal Law Review. Volume: 48. Issue: 3 Publication date: Summer 2011. Page number: 1371+. © 1994 Georgetown University Law Center. COPYRIGHT 2011 Gale Group.